Over a few years have witnessed the growth of Indian judicial decisions towards a more liberal and open mindset of a changing towards rape and especially marital rape. These decisions show how the country is moving from a backward-thinking society where everyone's rights are protected and especially women's rights.

First of all, we should understand marital rape:

Marital rape also referred to as spouse rape, means unwanted intercourse by a man on his wife obtained by threat of force, physical violence, or when she cannot give consent. Unwanted intercourse means penetration, whether anal, vaginal, or oral, against her will or without her consent. 

Is "marital rape" defined under Indian law: 

No, "marital rape" is defined in any Indian law.

This year, on the 15th of August 2022, we will celebrate the 76th year of independence, but we are still fighting issues of rape, gender equality, freedom, and many more. 

What Karnataka high court decision affects women's lives and society:

However, our legislative body is passive as it passed the judgment in 2017, and the legislature did not amend the IPC act. By the Karnataka high court judgment, it is clear that now the husband is liable for committing rape with her wife under section 375 and is punishable under section 376.

Let's look into the case of Hrishikesh Sahoo vs. the state of Karnataka and others, which passed an order on the 23rd of March 2022 regarding marital rape.

• In the case of Justice, ‘M Naga Prasanna’ said that "a man is a man; an act is an act; rape is a rape, be it performed by a man the "husband" on the woman "wife."
• Now, Exception 2 to section 375, "sexual intercourse or sexual acts by a man with his wife. and the wife not being under 15 years of age, is not rape," is declared unconditional by the Karnataka high court.
• After this judgment, the Ministry of Women and Child development raised an issue in Lok Sabha regarding marital rape. They suggested that it would take the government to make an appropriate decision at the right time.

Effect of Independent Thought vs. union of India, 2017

In earlier judgment, Justice Deepak Gupta, the Hon'ble Supreme Court of India, passed an order that exception 2 of section 375 of the IPC created an artificial distinction between a married girl child and an unmarried girl child between 15 and 18 years of age. Also quoted that "wife is not a men's property." But a husband was not liable in case of wife's age is above 18.

Section 375 of IPC 1860 violates the constitution of India:

Article 14: This article talks about equality before the law and equal protection of the law. According to this article, classification should not be arbitrary, artificial, or evasive. 

Article 21: This article talks about protecting life and personal liberty. 

Must be treated all human beings under the constitution equally, be it a man, woman, or others. Any thought of inequality in any provisions of law would fail the test of article 14 of the constitution of India. 

There are some loopholes under our Indian laws, Like:

• Protection of children from sexual offenses act 2012
• Juvenile Justice act 2015
• Children act 1960

The child's age is 18 years, according to these laws. But in IPC 1860 Exception 2 of Section 375, age is 15 years mentioned. Our Indian legislature needs a uniform law.

Other countries criminalized marital rape:

• Poland was the first country to declare marital rape a criminal offense in 1932.
• Australia also criminalized marital rape in 1976. 
• In addition, many countries like Sweden, Norway, Denmark, Czechoslovakia, South Africa, Ireland, Canada, the United States, New Zealand, Malaysia, Ghana, and Israel criminalized marital rape.

Need for proper legal remedies for marital rape:

• Women can file complaints about sexual assault under section 498A under IPC.
• Women can file complaints against sexual activity under the Protection of Women from Domestic Violence Act, 2005.
• Now, women can lodge an FIR of rape under section 375 of IPC.

As per our Indian Constitution Article 227, the decision of the Karnataka high court is not bound to other high courts. Hence our legislature should look into this and pass uniform laws for women's rights and empowerment.

To read this article in Hindi: Wife file a rape case against her husband
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